The most recent edition of Kenya Copyright Board (KECOBO) newsletter (cover pictured above) focuses on photography and image rights. A copy of the full Issue 18 is available here.
In the lead article starting on page 4 by KECOBO Executive Director, a compelling case is made in favour of specific legal protection of image rights, particularly in the case of celebrities. The article uses the oft-cited case of Dennis Oliech v. EABL (previously discussed here) to illustrate the limitations of existing intellectual property (IP) regimes in cases of commercial appropriation of one’s personality and/or image.
The article reads in part as follows:
“The use of images and personality rights is gaining currency and there is need to ensure that the same is well regulated and third parties do not take undue advantage of the commercialisation of the same. Guernsey provides a good example and maybe we should follow suit.”
This view from the Copyright Office begs the question: will Kenya be better off with a specific law on image rights like Guernsey? This blogger argues that the answer must be “No”.
The term “image rights” has been construed to mean the inherent right of every human being to control the commercial value of their image, likeness, persona, or identity. This “right of publicity” was first recognized in the United States about sixty two years ago. Celebrities such as professional actors, musicians, sportspersons generate the most economic value from this right. The right of publicity is violated when one appropriates someone else’s name or likeness for the purpose of economic benefit without his or her consent.
In 2012, the Bailiwick of Guernsey became the first jurisdiction anywhere in the world to introduce a registration system for image rights. The Image Rights (Bailiwick of Guernsey) Ordinance (IRO) 2012 facilitates for the first time the registration of personality and any image rights (including rights in characteristics, mannerisms or traits) unique to that personality. The ability to carry out such a registration and obtain a property right in one’s image is a watershed and allows one to effectively register and protect one’s personality and image rights as a matter of public record for the first time. With this registration, the appropriation by others of a Registered Personality or associated characteristics, for unauthorized economic benefit may give rise to statutory infringement proceedings under the IRO.
Whilst Kenya does not have a “unified” legal system to protect image rights, the combination of rights and causes of action under the Constitution, common law and various statutes on IP, defamation and consumer protection afford adequate level of protection which enables celebrities and any other persons to exploit and protect their image and brand very effectively.
This blogger submits that a Guernsey-type legislation in Kenya will have a negative impact on user rights, freedom of expression and the public domain. In this case, the public interest is far greater than the rights and interests of registrants and licensees of image rights. In cases of exploitation of image rights, the law ought to adequately balance the interest of the image rights holder with that of the public. In Canada, for instance, courts have attempted (quite convincingly, this blogger opines) to strike this balance by applying the so-called “sales vs. subject” test to place limits on their home-grown tort of appropriation of personality. Here is how the Canadian courts have set out the test:
“[S]ales constitute commercial exploitation and invoke the tort of appropriation of personality. The identity of the celebrity is merely being used in some fashion. The activity cannot be said to be about the celebrity. This is in contrast to situations in which the celebrity is the actual subject of the work or enterprise, with biographies perhaps being the clearest example.”
As previously discussed here
, there are a number of cases pending in Kenya’s High Court relating to image rights. This blogger hopes that the courts will not make the mistake of KECOBO by advocating for a broad legal framework for strict protection of image rights but will instead seek to balance the interests of image rights owners with other competing rights and interests of users, consumers and the public at large.